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Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge.
BY THE COURT
1. District courts use a three-step analysis to resolve challenges based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). First, the court must determine whether the defendant has made a prima facie showing that the prosecutor exercised peremptory challenges on the basis of race. If so, the burden shifts to the prosecutor to give race-neutral reasons for striking the prospective jurors at issue. At this point, the burden shifts back to the defendant for purposes of proving purposeful discrimination.
2. To establish a prima facie case of intentional racial discrimination as required in the first step of the analysis in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the defendant must show that the prosecutor has exercised peremptory challenges to remove venire members from the jury and that this fact, along with any other relevant circumstances, raises an inference that the government used the peremptory challenges to exclude members of the venire panel on account of their race. Upon a prima facie showing, the burden shifts to the government to come forward with a racially neutral explanation for its peremptory challenges. If the government comes forward with a racially neutral explanation, the district judge then must decide the ultimate question of whether the defendant carried his or her burden of proving purposeful discrimination. While a Batson claim involves a three-step process, the burden of persuasion always remains with the party opposing a peremptory challenge.
3. The preliminary issue of whether the defendant has made a prima facie showing that the State used peremptory challenges on the basis of race becomes moot if the trial court goes on to rule on the ultimate question of discrimination.
4. The burden to provide race-neutral reasons for striking prospective jurors is only one of production, not persuasion, and, unless a discriminatory intent is inherent in the answer, the offered reason will be deemed race-neutral.
5. In order to determine whether the reasons offered by the State for striking certain jurors revealed an inherently discriminatory intent or whether the offered reason should be deemed race-neutral, the court must necessarily have before it some reason why the State decided to strike the jurors.
6. The personal nature of a defendant's statutory and constitutional rights to be present at all critical stages of a trial means that they cannot be waived by counsel's mere failure to object.
7. The trial court is statutorily required to respond to all questions from a deliberating jury in open court or in writing, and the defendant is required to be present during any response if given in open court, unless such presence is waived.
8. Under the federal constitutional harmless error test, an error is only harmless where the party benefitting from the error persuades the court beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict.
9. The defendant in a criminal case has a statutory and constitutional right to be present during the discussion of any written questions presented by the jury, unless the defendant has waived his or her presence. A lack of evidence in the record establishing a defendant's presence or his or her waiver requires appellate courts to presume that the defendant's rights were violated.
10. The trial court is statutorily required to instruct the jury on lesser included offenses where there is some evidence that would reasonably justify a conviction of the lesser included offense.
11. Voluntary manslaughter is knowingly killing a human being committed upon a sudden quarrel or heat of passion.
12. In order to prove voluntary manslaughter, there must have been legally adequate provocation. Provocation can be a legal defense to a charge of voluntary manslaughter if such provocation is shown to have been calculated to deprive a reasonable person of self-control and to cause the defendant to act out of passion rather than reason. Mere words or gestures, however insulting, do not constitute adequate provocation. The test for sufficiency of provocation is objective, not subjective.
13. An appellate court is statutorily precluded from reviewing any sentence that is imposed within the presumptive sentence set forth in the applicable grid box.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon and Boyd K. Isherwood, assistant district attorneys, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
[51 Kan.App.2d 419] Standridge,
Travis M. Knighten appeals from his convictions for one count of second-degree intentional murder and one count of aggravated battery, arguing the district court erred in denying his challenge based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in failing to require his presence during a critical part of the proceedings, and in failing to deny his request for an instruction on the lesser offense of voluntary manslaughter. Knighten also argues the district court violated his Sixth and Fourteenth Amendment rights by sentencing him without requiring either the aggravating factors or his criminal history score to be proven to a jury beyond a reasonable doubt.
At around 2 a.m. on May 7, 2011, Carl Meridy, Kedrick Harrison, and Mario Brown went to a night club located at the corner of 13th and Hillside in Wichita. When they got to the club, it was closed, so they hung out in the parking lot. There were approximately 50-80 people in the parking lot at the time. Many people were leaving in their cars.
While Meridy was standing in the parking lot, he saw a dark-colored sport utility vehicle (SUV) pull up. He and another witness [51 Kan.App.2d 420] saw a hand holding a gun reach out of the front passenger side window of the SUV and fire shots. Meridy was struck by bullets in the right leg and the left arm. Brown was also struck by bullets in the back, shoulder, chest, and thigh. Brown and Meridy were both transported to a hospital. Meridy was treated and survived to testify at trial. Brown ultimately was pronounced dead at 3:35 a.m.
Witnesses at the scene described the SUV as a black vehicle with a white roof. They could not provide an exact make and model but told police it looked boxy, like a military vehicle. Later, the police recovered security footage belonging to a neighboring business and were able to determine that the SUV was a Toyota FJ Cruiser. The police identified Addison Buck as the owner of the vehicle. When interviewed, Buck told police that she believed her boyfriend, Arthur Gary, had the SUV on the night of the shooting.
The police were not able to immediately locate Gary and believed he may have left Wichita. In December 2011, about 7 months after the shooting incident, Detective Tim Relph learned that Gary might be back in town. Relph attempted to contact Gary through Buck. Gary later called Relph and agreed to meet him. When they met, Gary told Relph that four people were with him in the SUV at the time of the shooting: Jasper Gray, Ebony James, Dashawn Robertson, and Knighten. Gary said he was driving and Knighten was sitting in the front passenger seat. As they drove through the parking lot of the club, someone started walking toward the SUV and gesturing. Gary then saw Knighten pull a gun out of his pants pocket and fire it.
Knighten was charged with first-degree murder and aggravated battery. He pled not guilty to both counts, and his case proceeded to jury trial. After voir dire concluded, both the State and Knighten raised Batson challenges. Knighten's Batson challenge was based on the State's decision to strike two of the four potential African-American jurors from the jury pool. The State, on the other hand, claimed that Knighten had struck a disproportionate number of white
males from the jury pool. The district court denied both Batson challenges.
At trial, the jury heard testimony from all the passengers in the SUV except Knighten. Gary passed away prior to trial, so his preliminary [51 Kan.App.2d 421] examination testimony was read to the jury. Gary testified that he was driving the SUV and Knighten was in the passenger seat at the time of the shooting. He said that a man he did not know started walking up to the SUV making gestures. He observed Knighten take a gun out of his pants pocket and fire it. Gary also stated that after the shooting, Knighten told him that he was sorry that the incident had happened in the vehicle.
Ebony testified that she was sitting in the back seat on the passenger side and that Knighten was in the front passenger seat. She said she put her head down as soon as she heard shots and did not know whether the shots came from inside or outside the vehicle. She testified that she never actually saw a gun.
Jasper testified that she was sitting in the middle of the back seat of the SUV at the time of the shooting and Knighten was in the front passenger seat. Jasper said she also put her head down as soon as she heard shots and did not see where the shots were coming from. This testimony, however, conflicted with earlier statements she made in an interview with Relph when she identified Knighten as the individual who fired the gunshots.
Robertson testified that he was in the back middle seat and, like the rest of the occupants, confirmed that Knighten was in the front passenger seat. Robertson said that when the group got to the parking lot of the club, somebody came up on the SUV like " they was feeling some kind of war." Robertson testified that he did not see a gun or weapon of any kind in the hands of the person who was approaching the vehicle but that the individual was with a large group of guys walking up to the SUV. He testified that soon thereafter, Knighten started shooting at them.
Knighten did not testify. But his older sister, Sheronda Knighten, and his cousins, Kendra Hunter and Shaquala Horn, all testified that Knighten was babysitting ...