State v. Sledd

• Decision Date: 17 January 1992
• Docket Number: No. 64992,64992
• Citation: 250 Kan. 15,825 P.2d 114
• Parties: STATE of Kansas, Appellee, v. Melvin SLEDD, Appellant.
• Court: Kansas Supreme Court

Page 114

825 P.2d 114

250 Kan. 15

STATE of Kansas, Appellee, v. Melvin SLEDD, Appellant.

No. 64992.

Supreme Court of Kansas.

Jan. 17, 1992.

Syllabus by the Court

1. Under Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1722-23, 90 L.Ed.2d 69 (1986), the burden of proof required of a criminal defendant in order to establish a prima facie case of impermissible purposeful discrimination by the State in the use of peremptory challenges during jury selection requires that the defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. 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. 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.

2. Appellate review of a trial court's determination relative to whether or not the prima facie showing required by Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1722-23, 90 L.Ed.2d 69 (1986), has been made is plenary as it involves a question of legal sufficiency. In contrast, appellate review of a trial court's acceptance of the State's announced reasons for removal of a juror as being racially neutral is on the basis of abuse of discretion.

Rick Kittel, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, Michael L. McCoy, Asst. Appellate Defender, and Steven R. Zinn, Deputy Appellate Defender, were with him on the briefs for appellant.

Jean M. Schmidt, Asst. Dist. Atty., argued the cause, and Jennifer O'Connell, Asst. Dist. Atty., Gene M. Olander, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the briefs for appellee.

McFARLAND, Judge:

Melvin M. Sledd, Jr., appeals his jury trial conviction of involuntary manslaughter (K.S.A. 21-3404).

The underlying facts are only peripherally involved in the single issue raised on appeal. The factual summary will be limited, accordingly, to facts that relate to the issue. The victim was two-and-one-half-year-old Michael Emery, who resided in Topeka with his mother, younger brother, and the defendant, who was the mother's boyfriend. On July 5, 1989, Medevac personnel responded to an emergency call. Michael was not breathing when Medevac arrived. He was pronounced dead shortly thereafter. The conclusion at the autopsy was that the child had been repeatedly struck in the abdominal area approximately 24 hours before his death. Numerous bruises were noticed on various parts of his body. It was the State's theory that the child had been beaten by the defendant, said beating having resulted in the child's death. Defendant was charged with first-degree murder but convicted of the lesser included offense of involuntary manslaughter.

The sole issue on appeal is whether the trial court violated defendant's constitutional rights to a fair trial when it denied defendant's challenge to the State's removal by peremptory challenge of two black prospective jurors. The relevant jury selection facts must be set forth in some detail.

As this case was tried on the first-degree murder charge, 36 prospective jurors were qualified for cause with the State and defendant each to exercise 12 peremptory challenges. Defendant is black, as were 4 of the 36 prospective jurors. The procedure employed in exercising the challenges was for the State to write the name of its first challenge on a piece of paper and pass it to defense counsel, who wrote thereon the name of his first challenge. The paper was then passed back and forth until all challenges had been exercised. The State's challenge number seven was to a black woman, Marcella Brown. The State's twelfth challenge was to a black man, Gary Lassiter. Two black jurors remained on the panel at this time, although, apparently, one of those was subsequently removed through the exercise of defendant's final peremptory challenge. Immediately after the State exercised its peremptory challenge removing Lassiter, the following occurred:

"MR. GREENO [defense counsel]: Under the Batson decision, we have to make our record. The State has elected as strike number twelve to strike Gary Lassiter. Ah, strike number seven for the State was Marcella Brown. And I think we would have four people, four black people, from the panel that are the same race as my client. As I recall the decision under Batson--

....

"MR. GREENO: As I understand it, the Court there talked about the totality of relevant facts which indicate that the State is using, you know, the race of the prospective juror as the reason for the strike.

"In this particular situation, certainly Mr. Lassiter is a black man, as is Mr. Sledd. He has exhibited that he is qualified to be a juror in this particular case and he is of good moral character, obviously that he has the intelligence necessary to ingest the facts of this particular case. He has indicated that he understands the facts, you know, as we have talked about his obligation as a juror. He has not shown any bias whatsoever. In fact, he has indicated that he could follow the instructions that the Court gave him, that he has children of his own and that he loves children. He has made a conscious effort to avoid the media. And I think he has demonstrated every ability to be a fair and impartial juror in this particular case. And under those circumstances, he hasn't leaned any way toward the defense or to the State. And I think it's clear in this particular situation that, you know, there is some question as to whether or not the government has exercised this challenge for the appropriate basis.

"THE COURT: All right." (Emphasis supplied.)

The State then proceeded to state its reasons for the exercise of the Lassiter challenge, the thrust of which was that he was a leader in a church which approved corporal punishment. The State was concerned that Mr. Lassiter would not be a good choice for a juror in a case involving the beating of a child. Comments were then made by both counsel relative to Mr. Lassiter's answers to questions on corporal punishment of children.

The trial court then stated:

"THE COURT: Thank you. The standard for this determination is set forth in Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712, and more particularly at ... IIIc section of the opinion.

"Just to summarize those, the Court states that the defendant is required to establish a prima facie case of purposeful discrimination in selecting the petit jury, and in determining that may rely solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case--and I'll just say parenthetically, I'm paraphrasing and not quoting--to establish such a case, the defendant must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. 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. And, finally, 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 impaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination. And in deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances.

"The Court gives a couple of examples. One example is a pattern of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. The Court points out that these examples are merely illustrative, and that the Court goes on to say that the trial court's experience in supervising voir dire will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors.

"Now, once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. And the ultimate requirement is that the prosecutor must articulate a neutral explanation related to the particular case to be tried. And the trial court will then have the duty to determine if the defendant has established purposeful discrimination.

"So with these rules in mind, the Court will proceed with its decision.

"In the case at bar, we have the State having exercised all of the peremptory challenges, the defendant has one peremptory challenge left. Out of thirty-six potential or prospective jurors passed for cause, the State has exercised peremptory challenges towards two black potential or prospective jurors. There are two remaining on the jury unless one of those two would be removed by the twelfth and final strike of the defendant.

"In reviewing the pattern of strikes against black jurors, the Court does not find or is not persuaded that they give rise to the inference of discrimination. The State had twelve peremptory challenges, and it's true that they have...