Hannan v. Com., 88-CA-932-MR

• Decision Date: 23 June 1989
• Docket Number: No. 88-CA-932-MR,88-CA-932-MR
• Citation: 774 S.W.2d 462
• Parties: Belinda C. HANNAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 462

774 S.W.2d 462

Belinda C. HANNAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 88-CA-932-MR.

Court of Appeals of Kentucky.

June 23, 1989.

Case Ordered Published by

Court of Appeals July 21, 1989.

As Modified July 28, 1989.

Thomas L. Conn, Lexington, for appellant.

Frederic J. Cowan, Atty. Gen. and Vickie L. Wise, Asst. Atty. Gen., Frankfort, for appellee.

Before ELSWICK, HAYES and HOWARD, JJ.

HOWARD, Judge.

The appellant in this criminal case appeals her Fayette Circuit Court conviction on the grounds that the Commonwealth violated the equal protection clause by using its peremptory challenges to remove female jurors.

The appellant, Belinda C. Hannan, was indicted in February of 1988 for theft by unlawful taking over $100 and unlawful transaction with a minor. The indictment stemmed from an incident on January 3, 1988, when the appellant and a juvenile allegedly took merchandise worth over $100 from the Lazarus Department Store in Lexington, Kentucky.

A trial was held on March 1, 1988. The jury pool consisted of twenty women and eight men. The Commonwealth used three peremptory challenges to strike males and two to strike females. Defense counsel used his peremptory strikes to remove three women and one man. Three women and three men were eliminated by lot. The remainder, eleven women and one man, served as the jury plus there was a female alternate.

Following the jury selection, defense counsel asked the court to permit him to examine the Commonwealth's list of peremptory strikes. The reason offered by defense counsel was that he wanted to preserve an issue under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Defense counsel sought to extend the equal protection prohibition in Batson, supra, against the use of peremptory challenges to strike jurors due to race, to challenges based on gender. The trial court rejected defense counsel's argument.

Following the presentation of evidence, the appellant was convicted by the jury on both charges contained in the indictment. The appellant received one year on each count, to be served concurrently, but the sentence was reduced to probation for five years. This appeal follows.

The sole contention on appeal is that the appellant was denied equal protection under the law when the Commonwealth peremptorily challenged female jurors.

The first question is whether Batson, supra, can be extended to the peremptory challenges of female jurors.

The extension of Batson, supra, to female jurors has not been considered in this jurisdiction. Only a few cases have been generated in other jurisdictions, and these decisions are conflicting.

In United States v. Hamilton, 850 F.2d 1038 (4th Cir.1988), the Court rejected the argument that the Equal Protection Clause compelled an extension of Batson, supra, to peremptory challenges on the basis of gender. The Court stated that while it did not approve of striking jurors for any reason related to some group classification, it found no authority to extend Batson, supra, beyond instances of racial discrimination.

In People v. Crowder, 161 Ill.App.3d 1009, 113 Ill.Dec. 798, 515 N.E.2d 783 (1987), the Court held that a male defendant had no standing to request a Batson hearing when the state had used its peremptory challenges to exclude women from the jury. It is not clear whether the Illinois Court ruled that the defendant had no standing because he was male and the strikes were against women or because no question of race was involved.

The Court in Commonwealth v. Samuel, 398 Mass. 93, 495 N.E.2d 279 (1986), held that young people in general were not a defined group so that peremptory challenges to exclude them would be a constitutional violation. The Court stated in dicta that women would be a particular defined group for purposes of such a claim.

The only case we could find in which a court squarely holds that Batson, supra, applies to gender-based peremptory challenges is People v. Irizarry, 142 Misc.2d 793, 536 N.Y.S.2d 630 (Sup.Ct.1988). In that case, the prosecution used its peremptory challenges to strike 9 women and 1 man.

In Batson, supra, 476 U.S. at 89, 106 S.Ct. 1712, at 1719, 90 L.Ed.2d at 82, the Court does make a general statement that "the component of the jury selection process at issue here, the State's privilege to strike individual jurors is subject to the commands of the Equal Protection Clause." But throughout the majority opinion, the court discusses the equal protection safeguards only in terms of racial discrimination.

In his dissent in Batson, supra...